Land-grabbing yahapaalanaya-style

 [Political buddies Ravi K and Upul J doing the same-old same-old?]

It is not news when some company takes a state institution to court.  It happens often enough.  In this world very few people if at all do not absolve themselves of guilt before or when they commit an act which others or the law might consider wrong or illegal.  That’s why there is litigation.  That’s why there are plaints and plaintiffs, defence and defendants.  

Each suit however has a story.  Some are juicy and some are boring.  Some reveal structural flaws and some reveal unwholesome cultures of being and doing.  It’s the last kind that one sees in an otherwise ordinary and even common plaint filed in the District Court of Colombo.

Crown City Developers (Pvt) Ltd, a subsidiary of the Abans Group of Companies, has petitioned court against the Board of Investments (BOI).  The plaint refers to attempt by the BOI to terminate agreements which in manner and intent are ‘malicious, capricious, unlawful, illegal and against the terms and conditions of the said agreement’.  That’s legal jargon of course and of the kind that get copy-pasted from one plaint to the next.  

But what really happened?  Crown City has not had any issues with the BOI and vice versa in 15 years.  Even as recent as November 2014, the two parties communicated to apply for and obtain approval for the construction of a warehouse building and logistic center.   

Then, at the end of March 2015, less than three months after the country elected a new President who appointed a new Cabinet, the BOI writes to Crown City seeking termination of agreements.  Two weeks later the BOI further informs Crown City to cease construction on the property.  Interestingly, prior to the first communication of this kind, i.e. on March 11, 2015, the BOI informs Crown City to hand over an unutilized 14 acres of land.  Land, then, appears to have been the issue.  Even more interesting is the fact that the BOI has not specified the reasons for seeking termination apart from the vague and indeterminate ‘[failure] to fulfil the terms and conditions of the said Agreements’.  Highly suspicious and certainly irregular.  

Since the BOI has not specified reason it would be harsh and unfair to indulge in conjecture.  We can however state some facts.

Interest in the plot of land in question has been expressed by a person ‘having business connections with business entities in direct competition with the plaintiff and/or occupying premises adjacent to the plaintiff and/or who would greatly benefit from use and/or occupation of the said property’ (from the plaint).  The plaint indicates that this person holds powerful office.   

Interestingly, again, Crown City has of late (i.e. since the new Government took office) been subject to what might be construed as undue harassment by the Customs and the Inland Revenue Department.  

Now it could be that Crown City has been up to no good and that the previous Government looked the other way.  Theoretically then there’s nothing wrong in these state agencies (empowered by ‘good governance’ pledges perhaps) taking interest in their operations.  

On the other hand, what we have are three state agencies (BOI, Customs and Inland Revenue) and an interested party who is a politician.  The plaint alludes to evidence of this politician’s interest in the property.  

The politician has a name.  Ravi Karunanayake.  He is the Minister of Finance.  He has direct or indirect say in the BOI, Customs and Inland Revenue.  These are dots.  They can be joined.  Conclusions can be drawn.

Now we cannot predict how the court will rule.  There is litigation, there is determination.  There are out-of-court settlements and there is the withdrawal of cases.  Anything could happen.  Who can tell, perhaps Crown City might ‘settle’.  If the settlement benefits any entity that Karunanayake is associated with then there’s something seriously wrong that has happened.   Even if there is a settlement, having claimed breach of contract the BOI cannot back off without appearing to have represented the interest of the minister and nothing else.  

Has Ravi Karunanayake abused his position?  The BOI Chairman is Upul Jayasuriya a known UNPer, ardent critic of the previous government and one of the immediate beneficiaries of the power-change in January.  The two are either friends or political associates.  Has Jayasuriya abused his position?  Is there mutual back-scratching happening here?  We do not know.  We hope not, in fact.  However, as things unfold, we will know.  One way or the other.

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USAID moves to take over the Bar Association

First they offer help and then they enslave

‘First they had the book and we had the land.  Then they said “close your eyes, let us pray”.  When we opened our eyes, we had the book and they had the land.’  -- Bishop Desmond Tutu on the relationship between invader and missionary in the conquest of Africa. 

It all began innocently enough, not too dissimilar to the Europeans who upon ‘discovering’ new lands obtained first the goodwill of native peoples with bead in return for temporary shelter and later spilled their blood and robbed their lands.  The United States Agency for International Development (USAID) was at the beginning full of promises and generosity.  It began when Upul Jayasuriya was the President of the Bar Association of Sri Lanka (BASL).  Money was offered and accepted to refurbish the old auditorium. 

As of now, the agency notorious for its covert operations to destabilize countries it purports to help, is involved in numerous other projects including the development of the District Court Library, improving the BASL Library, BASL system networking project, public forums, trafficking program, ethics issues, BASL research unit and the ICT project. 

Most of these projects are in the ‘in progress’ category with some having little or no progress to show.  Some of them are partly funded by BASL but are conveniently referred to as ‘USAID projects’. 

Interestingly apart from the BASL President, Geoffrey Alagaratnam the rest of the Bar seems to be clueless about projects, duration, budget lines and such.  Such information is known almost exclusively to Prakalathan Thuraisingham (also known as ‘Prabha’), who is the on-the-spot point-man for USAID in BASL offices and activities.  Thuraisingham works closely with Nayomi Wickramaratne who was the previous Administrative Secretary (Acting) of BASL. 

Interestingly, she held that post even as she worked for USAID, obtaining two salaries, a fact that the then Treasurer Upul Deshapriya vehemently objected to.  Whether or not Upul Jayasuriya knew this is unclear.  What is clear is that through her, USAID had access to the personal files, the accounts, system information and details of the management structure, all of which could easily be used to manipulate the BASL for whatever ends.  Whether this happened, we don’t know, but the opportunity was there and indeed was created either knowingly or due to gross neglect and incompetence on the part of whoever was responsible for creating these conditions. 

USAID does pay a rent for the space occupied, but nothing is paid for the use of other BASL resources including employees.    What might have begun in cordial terms had within the space of 18 months transformed into a situation where USAID officials operate as though they own the BASL.  USAID officials are reported to be poking their fingers into administrative operations of the BASL.  Thuraisingham is reported to strutting around as though he is a member of the BASL, even being present that election of Bar Council Members.  The truth is he is neither member nor an employee.  Whether or not he had the blessings of the BASL President and the rest of the BASL membership is not known. 

Most disturbing (for lawyers) is the fact that through the ‘networking project’ funded by USAID the details of all BASL members, court cases against lawyers, projects etc., can be accessed by an outside agency.    Considering the sway of the BASL in the political life of the country (it played a key role in the eviction of Mohan Peiris and the reinstating of Shiranee Bandaranayake as Chief Justice, for example), the benefits for a rogue outfit operating for a country that does not subscribe to the ethics one expects in matters that are described as ‘friendly’, are pretty obvious.  

Information is key.  Documentation, historically, is often a necessary first step that is followed by either purchase or outright capture.  Perhaps the affairs of the BASL are not that dramatic, but a body that purports to be independent of political control (a fact seriously compromised by the election of Upul Jayasuriya, a known UNPer and an immediate beneficiary of the January 8 result) should not only steer clear of political parties but all other bodies, especially agencies that have a history of meddling and indeed subversion. 

It doesn’t look as the membership of the BASL has a clue about what’s happening.   The current President and the Executive Committee, for example, are contemplating a change in the BASL structure which could very well make the ‘USAID takeover’ official for all intents and purposes.

The envisaged restructuring will see the appointment of an Executive Director who will function as the Chief Executive Officer and the Chief Registered Lobbyist. This would severely diminish the discretionary powers of the Secretary, Treasurer and Administrative Secretary.  

The project is the brainchild of USAID which is to provide relevant funds.   

The person appointed to the position will have wide powers which include implementing programs regardless of management changes, developing income generating plans and linking the bar with other professionals and organizations.  In addition he/she will be involved in education, communication, data base and community through policy, reporting and programming. 

He/she will also develop strategic plans and implement the action/operational plan and micro donation strategies, advice on all BASL activities, act as official spokesperson of the bar, represent BASL and supervise day to day operations of the BASL.

Thuraisingham’s name (Surprise! Surprise!) is being tossed around as the possible first ‘Executive Director’.  BASL members would know the nature of the organization’s relationship with the Chief Justice and the Attorney General.  The potential for involvement in unwarranted and dangerous ways in the affairs of justice needs no elaboration. 

The proposal does not mention eligibility criteria, opening the post to people who are not members of BASL and therefore technically to people who have no understanding of the judicial system of the country, its history and traditions, or the role of the BASL. The problem then is not about Thuraisingham.  If not him, then someone else, that’s the logic that can be drawn from the absence of specification.  And if USAID is funding it, there’s no reason to believe that USAID will not have a say in who gets the job. 

The membership needs to ask questions.  Alagaratnam needs to answer questions.  Will he inform the membership of all that has happened, including the role of the USAID, the operations of Thuraisingham, the status of BASL vis-à-vis USAID and what the possible appointment of an USAID-handpick would mean for the BASL? 

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The Bar lowers itself

The Bar Association of Sri Lanka often tries to claim moral high ground and political neutrality.  This was particularly apparent during moves to oust the former Chief Justice Shirani Bandaranayake.  Whenever issues pertaining to the profession come up, the office-bearers and the membership articulate positions.  They also speak up whenever they feel the independence of the judiciary is under threat. As they should. 

What the Bar Association cannot get away from, however, is that its key office bearers are not always politically neutral.  They have political preferences and some of these preferences are less about ideology than about political parties. 

There’s nothing wrong in this of course.  As individuals, these people do have political rights.  They typically play these down, focusing instead on ‘principles’.  As they should.    The problem is consistency, at least under the current leadership. 

Not too long ago, the Bar Association was up in arms over Minister of Rehabilitation Rishard Bathiudeen’s antics in Mannar.  The man, well known for strong-arm tactics, got his goons to attack the Mannar Court.  The errant Minister didn’t stop there. He thought fit to put the District Judge and Magistrate A Judeson in the dock, subjecting him to interrogation and numerous threats. 

The Bar Association was livid.  Statements were issued condemning the Minister.  The membership was instructed to boycott the courts. The entire judicial system was brought to a standstill.  They had a case. They made it. 

Time passed.  An election was announced.  Candidates were picked.  Key campaign issues were discussed.  One of the main issues of the Opposition Candidate, Maithripala Sirisena, is law and order.  Consequently there has been a lot of rhetoric about the independence of the judiciary, the vexed issue of politicians interfering in the work of the Police and the courts.  ‘This would be ended,’ it has been promised.  All valid arguments and as such the promises certainly carry weight. 

Time passed.  Politicians, as they are wont to do in this country, assessed the mood of the electorate, weighed their chances of securing nomination in Parliamentary elections and thought about the worth of their respective stock.  Some remained where they were. Some decided to switch allegiances. 

Then Rishard Bathiudeen ‘moved’.  He crossed over to the Opposition Camp.  On the face of it, he is just another politician making ‘an informed choice’.  Sure, he put a bit of spin by feeding and denying speculation for a while, but that’s not illegal.  Neither was his loyalty-switch. 

It is disturbing no doubt to those who believed that the Opposition was serious about law and order, independence of the judiciary, the need to arrest political thugs and so on.  The man, after all, was warmly embraced by those who have suddenly decided to champion these causes, never mind their indulgence and indeed culpability in the exacerbation of this state of affairs they object to now. 

But that’s a problem for the Opposition.  Politicians play a power game.  They worry about numbers.  They weigh options, assess marginal benefits over marginal costs.  They probably believe what Rishard ‘brings’ is larger than what they might lose thanks to Rishard’s arrival.  That’s their business.

But what’s the ‘business’ of the Bar Association and its moral posturing?  What’s their ‘business’ when it comes to public assessment of the sincerity of their various objections? 

President of the Bar Association, Upul Jayasuriya, says ‘there are bigger issues…this is a political issue and I don’t want to comment about it’.  Upul Jayasuriya’s political loyalties are well known.  He has not been so shy of political issues to constantly skirt them.  The President of a body like the Bar Association ought to know that politics pervades all spheres.  Indeed, isn’t this why Jayasuriya and others were upset over the removal of Shirani Bandaranayake?  Rishard attacks the edifice that is house to Jayasuriya and the entire Bar Association.  If anyone offers to defend the house, it should warm their hearts.  If the would-be protectors embrace those who throw stones at the house, it raises certain questions.  These questions, Jayasuriya says are not worthy of response.  His choice.

He is right about there being ‘bigger issues’ though.   He has cited the vanishing act of another ruling party thug, Nishantha Muthuhettigama.  Both are ‘big issues’ and their sizes perhaps are determined by the preference of the person taking measurement. 

In the end, it is not political rivals that need to lament.  It is the people.  The candidates and their supporters are doing their best to make it extremely difficult for people to decide who the good guys are.   Upul Jayasuriya’s outfit has lowered the bar.  For errant politicians.  This is sad.  We could put it another way: 'Rishard Bathiudeen has made Upul Jayasuriya bend (the Bar).'  That's even sadder.         

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